Judge Rules Man Cannot Be Forced To Decrypt HD

I Don't Believe in Imaginary Property writes "In Vermont, US Magistrate Judge Jerome Niedermeier has ruled that forcing someone to divulge the password to decrypt their hard drive violates the 5th Amendment. Border guards testify that they saw child pornography on the defendant's laptop when the PC was on, but they made the mistake of turning it off and were unable to access it again because the drive was protected by PGP. Although prosecutors offered many ways to get around the 5th Amendment protections, the Judge would have none of that and quashed the grand jury subpoena requesting the defendant's PGP passphrase. A conviction is still likely because prosecutors have the testimony of the two border guards who saw the drive while it was open." The article stresses the potential importance of this ruling (which was issued last November but went unnoticed until now): "Especially if this ruling is appealed, US v. Boucher could become a landmark case. The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for the last decade arguing the merits of either approach."

Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.

Comments

Wow...anyone know what happened to him?

[clonehappy]

Here, we have a story which is not only over 8 months old, but is also a dupe. That has to be some kind of a record.

Strange

[PPH]

IANAL, but if my memory serves me correctly, Customs and "border guards"aren't constrained by the same laws that other law enforcement is. That's why they can search your vehicle, personal effects, body cavities, etc. when you enter the country without a warrant.

I have a constitutional protection against unreasonable searches and seizures once inside the United States, but not while entering it. The judges decision sounds nice, but I don't think it will stand.

Re:Strange

[Free the Cowards]

That's why they could look at it in the first place.

But they failed to gather evidence when they had the chance. And now he's back in the country, subject to all the regular protections. If they had copied the unencrypted contents of his hard drive previously they would be able to use that evidence in court, but they can't force him to decrypt its contents now just because they happened to have access to it when he crossed.

TrueCrypt Hidden OS

[Anonymous Coward]

Plug for TrueCrypt 6.0's Hidden OS feature. This allow one to give a password (not the "real" password) and have the system boot to a hidden OS which is not your real installation. Moreover, there is no way to prove the "real" OS exists. http://www.truecrypt.org/docs/?s=hidden-operating-system

Backdoors?

[Cillian]

Well, the fact that "they"'ve gone to all this trouble, and have fallen flat on their faces suggests there really aren't any backdoors in PGP at least, or that they aren't open to people at that level, which is nice.

Re:of course

[Gen-GNU]

I also doubt that a "conviction is still likely", unless they have some other material to show. Convictions in these cases are almost always due to the shock value created by showing the dirty films and pictures to the jury. If they cannot recover the images and movies, they will actually have to cover their burden of proof a lot more than prosecutors are used to in this case, and the defense might actually have a shot.

If the jury actually thinks about the fact that the only evidence is what some cops say they saw, but can't prove. If the prosecution somehow gets to show "similar images" or some such nonsense, the defense is hosed.

Best news out of USA for a long time

[level4]

I know a lot of people who were getting very nervous about even *visiting* the USA. Think they're overreacting and melodramatic? Think again - all we hear are stories of how foreigners, with no rights, detained by customs, forced to incriminate themselves, forced to give up encryption keys on threat of indefinite detention in stateless legal no-mans-land .. how reasonable it is to worry about it all *that* much is questionable but it's undeniably been a bad trend for a long time.

This, though - an unequivocal restoration of the right to silence, at a border no less - is a *very* welcome development. Let's hope it's the first in a long run of "restoration" decisions as the pendulum swings back from the terrorism bubble.

Really happy to see this. I'm not American, but I was taking no joy whatsoever in watching the previous slide. I'm feeling pretty joyful to see this kind of thing, though - separation of powers worked in the end!

Here's to a few more key decisions like this. Go USA.

Pass-Phrase Confession

[TheTempest]

So what if I made my pass phrase the confession to some minor crime and then confessed the fact? Wouldn't that make it a more clear-cut fifth amendment issue as revealing my pass-phrase would be directly incriminating?

Re:Man, this is _so_ wrong.

[jrockway]

I'm going to kill the president.

Re:Sweet!

[glittalogik]

and it's not bad at fucking all if you have it done by friends who you know will stop

Fixed. Read http://en.wikipedia.org/wiki/Learned_helplessness

Re:Sweet!

[PopeRatzo]

What everyone is missing is that this guy is "guilty", if he wasn't then why won't he let them look at his laptop, and don't give me any of that "he has rights" bullshit.

I disagree, Mr. President.